Tuesday, January 8, 2008

A Somewhat Anti-Climactic Argument

The Supreme Court today heard argument in Baze v. Rees, a case in which a death row inmate contends that the three-drug lethal injection protocol used by Kentucky (and every other death penalty state) imposes cruel and unusual punishment under the Eighth Amendment.

When the Court initially decided to take the case, there seemed a substantial possibility that it might issue a decision that would de facto prohibit executions via lethal injection (and thus, under current circumstances, executions in general). From today's argument, however, I think it is quite clear that the justices, thankfully, are not inclined to go down that road. Instead, it seems as though the broadest realistic outcome of this case would be a ruling that would strike down use of the current three-drug protocol but allow use of an alternative one-drug method that would carry less risk of causing extreme pain. (I won't go into specifics about the relevant differences between the two protocols here; if you're interested they are outlined fairly well in the audio and transcript of the argument.)

Moreover, from the argument it seems unlikely that the Court will even announce that narrower conclusion, at least this term. Several of the justices (not surprisingly, Scalia, Alito, Roberts, and presumably Thomas) appear inclined to rule that use of the three-drug protocol does not carry a substantial risk of imposing constitutionally-relevant cruelty, thus upholding it outright. A few of the others (Breyer and Souter, at least) appear to believe that the case needs to be remanded for further factfinding. In sum, Baze seems on track to an outcome considerably less important than some had expected and feared.

My analysis here is quick and dirty (indeed, very quick and dirty). SCOTUSblog has much more complete coverage here.